# EUR-Lex - 52012PC0134 - EN

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# 52012PC0134

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning flag State responsibilities for the enforcement of Council Directive 2009/13/EC implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC /* COM/2012/0134 final - 2012/0065 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The Maritime Labour Convention (MLC), 2006
was adopted by the International Labour Organisation (ILO) with a quasi
unanimous vote on 23 February 2006 in Geneva. It applies to international
shipping and covers essential matters such as the minimum requirements for
seafarers to work on board a ship (title I of the MLC), conditions of
employment (title II of the MLC), accommodation, recreational facilities, food
and catering (title III of the MLC) health protection, medical care, welfare
and social security protection (title IV) and compliance and enforcement (title
V) in order to guarantee decent working and living conditions on board ships,
as well as procedures to implement these provisions. The Convention can be
considered as the first maritime labour code for more than 1.2 million
seafarers worldwide, as well as for shipowners and maritime nations around the
world.

The EU Member
States and the Commission have supported the ILO work on this matter from the
outset. The EU sees a valuable input in the MLC which aims at establishing a
level playing field in the worldwide maritime industry by setting common
minimum standards for all flags and seafarers. In this respect, the EU has
already adopted Council Decision 2007/431/EC of 7 June 2007 authorising Member
States to ratify, in the interest of the European Community, the Maritime
Labour Convention, 2006, of the International Labour Organisation[1].
Some Member States have already ratified it (Spain, Bulgaria, Luxembourg,
Denmark, Latvia, the Netherlands) and others are about to do so. On the
substance, the Member States national legislations are generally more
protective and detailed than the ILO standards. To maintain the consistency
between the international and national standards and to ratify the Convention,
an extensive and time consuming screening of the national legislations is the
prerequisite.

At this stage,
22 countries have ratified the MLC representing more than 45% of the world
fleet tonnage while 30 ratifications and 33% of the world fleet tonnage are
required by the MLC to enter into force.

The EU also
adopted Council Directive 2009/13/EC of 16 February 2009, implementing the
Agreement concluded by the European Community Shipowners’ Associations (ECSA)
and the European Transport Workers’ Federation (ETF) on the Maritime Labour
Convention, 2006, and amending Directive 1999/63/EC[2].
Directive 2009/13/EC constitutes an outstanding achievement of the sectoral
social dialogue and the present proposal aims at ensuring that it is endowed
with proper enforcement means in the Union.

To this end it
is foreseen, on the one hand, to require Member States to apply Directive
2009/13/EC when they wield their powers as flag States.

As things
stand, through Directive 2009/13/EC, European legislation has been put in line
with the international standards fixed by the MLC. This Directive took up the
relevant provisions of the MLC establishing rights for seafarers contained in
its Titles I, II, III and IV above mentioned.

However, the
European social partners, wishing to implement their agreement by means of a
Council decision on the basis of Article 155 TFEU, do not have the power to
include in their Agreement the enforcement provisions contained in Title V of
the MLC and asked the Commission to act in this respect. The present initiative
aims precisely to do so on the flag State responsibilities.

This initiative
is part of the EU policy on the maritime professions. In fact, as stated by the
Commission in its Communication to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions - Strategic
goals and recommendations for the EU's maritime transport policy until 2018[3],
there is a genuine EU interest in enhancing the attractiveness of the maritime
professions to Europeans by means of actions that involve, where appropriate,
the Commission, the Member States and the industry itself. This fully applies
to the implementation of the MLC which considerably improves working and living
conditions on board ships. The Communication underlines that the agreement
between EU social partners on the implementation of key elements of this
Convention demonstrates the wide support within the industry in this field and
that, therefore, action of the EU and its Member States should aim to:

– move towards rapid
ratification of the MLC by Member States and the early adoption of the
Commission’s proposals based on the social partners' agreement for implementing
its key elements in EU law.

– ensure the effective
enforcement of the new rules by means of adequate measures, including flag and
port State control requirements.[4]

The White Paper on the Roadmap to a Single
European Transport Area – Towards a competitive and resource efficient transport
system[5] highlights the importance
of a social agenda for the maritime transport to both promote jobs and enhance
safety and the Staff Working Document accompanying the White Paper foresees a
proposal to ensure effective enforcement of the MLC.

This proposal is closely associated with
the Proposal for a Directive of the European Parliament
and of the Council amending Directive 2009/16/EC on port State control, aimed
to ensure a global level-playing field for industry by enforcing the MLC in all
European ports.

1.1         The Maritime Labour Convention

As generally
acknowledged and explicitly stated by the ILO, the shipping industry is “the
world’s first genuinely global industry” which “requires an international
regulatory response of an appropriate kind – global standards applicable to the
entire industry”.

The MLC, adopted in 2006, provides
comprehensive rights and protection at work for all seafarers regardless of
their nationality and the flag of the ship.

The MLC aims to both achieve decent working
conditions for seafarers and secure fair competition for quality shipowners. It
sets out seafarers' rights to decent conditions of work on a wide range of
subjects, and has been designed to be globally applicable, easily
understandable, updatable and uniformly enforced. It has also been designed to
become a global instrument known as the "fourth pillar" of the
international regulatory regime for quality shipping, complementing the three key
Conventions of the International Maritime Organization (IMO): the International
Convention for the Safety of Life at Sea (SOLAS Convention), the International
Convention on Standards of Certification, Training and Watch keeping (STCW
Convention) and the International Convention for the Prevention of Pollution
from Ships (MARPOL Convention).

It contains
four Titles dealing with the seafarers’ rights: Title 1 on minimum requirements
for seafarers to work on board a ship; Title 2 on conditions of employment; Title
3 on accommodation, recreational facilities, food and catering; Title 4 on health
protection, medical care, welfare and social security protection.

Moreover, the MLC, in its Title 5, contains
mechanisms to improve supervision at all levels: the ship, the company, the
flag State, the port State, the labour supplying State and the ILO system for a
global and uniform compliance and verification. Indeed, together with a sound
corpus of rules, a more effective enforcement and compliance system was needed
in order to eliminate substandard ships for the sake of ship safety and security
and environmental protection.

Therefore, the EU has to provide means,
through flag State and port State control to ensure that the relevant MLC
maritime labour standards are applied on board all ships calling at EU ports,
regardless of the nationality of the seafarers.

The enforcement of the MLC standards through
flag State and port State control has also to be seen as a way to limit social
dumping, which deteriorates working conditions on board, and penalises
shipowners offering decent working conditions complying with the ILO rules.

1.2.        The MLC flag State
responsibilities

By adopting the MLC, the ILO has developed innovative
provisions regarding certification of labour conditions on board ships.

The MLC establishes a strong enforcement
regime, backed by a certification system where the flag State (or a recognized
organisation/entity acting on its behalf) reviews the shipowners’ compliance
plans and verifies and certifies that they are actually in place and being
implemented. Ships will be required to carry a maritime labour certificate
and a declaration of maritime labour compliance on board.
These documents will be produced by the flag State exerting jurisdiction over
the ships and certifying the outcome of the checks. Under the MLC, this requirement
concerns ships above 500 gross tonnage (GT) that are engaged in international
voyages or in cabotage abroad. However, EU Flag States will be expected to
ensure that national laws and regulations implementing Directive 2009/13/EC are
respected on smaller ships (less than 500 GT) for which the certification is
not mandatory under the MLC. In order to avoid adding a further regulatory
layer on Member States, the whole system of certification has not been
integrated into EU law by the present proposal, but left to international law.

1.3.        Current EU legislation

The EU has set up a legal framework to
increase maritime safety by adopting three maritime safety packages, the latest
dating from 2009. Some of the EU rules on maritime safety and health and safety
are relevant for the present proposal. They are shortly summarised below.

1.3.1      Directive 2009/21/EC of the
European Parliament and of the Council of 23 April 2009 on compliance with flag
State requirements[6]

At EU level, Directive 2009/21/EC aims to
ensure that Member States effectively and consistently discharge their
obligations as flag States, to enhance safety and prevent pollution from ships
flying their flag. It provides for the conditions for ships to be registered
under the flag of a Member State and the obligation for flag States to set up a
quality management system and internal evaluation in line with the
international standards. To this end, IMO standards - in particular the
mandatory audit plan of national maritime administrations and the IMO Flag
State Code - apply.

Directive 2009/21/EC, however, does not
contain a list of duties that have to be performed by the flag State but refers
to IMO procedures. Therefore, the specific duties for the flag State implied by
the enforcement of Directive 2009/13/EC, should be introduced into EU law.
Since the objectives of the current proposal are separate and different by
nature from those of Directive 2009/21, it appears more consistent to opt for a
stand alone proposal rather than amending Directive 2009/21/EC.

1.3.2      Directive 2009/13/EC

Following the agreement
between the EU social partners, Directive 2009/13/EC implements certain standards
of the MLC within Union law. Its annex, in particular, has incorporated the
relevant elements of Titles 1, 2, 3 and 4 of the MLC on the minimum
requirements to work on board ships (medical certificate, minimum age, training
and qualifications), the conditions of employment (seafarer's employment
agreements, repatriation, compensation for the ship's loss or foundering, manning
level, career and skill development and opportunities for seafarers'
employment), provisions on accommodation, recreational facilities, food and
catering, the provisions on health protection, medical care and welfare
including the shipowners' liability and access to shore based facilities and
lastly the provisions on onboard complaint procedures.

Except as expressly
provided otherwise, Directive 2009/13/EC applies to all ships whether publicly
or privately owned, ordinarily engaged in commercial activities, other than
ships engaged in fishing or in similar pursuits and ships of traditional build
such as dhows and junks. The Directive does not apply to warships and naval
auxiliaries.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES

The EU Member States actively took part in
the MLC negotiations with the Commission which organised the co-ordination of
the EU positions. All EU member States adopted the MLC in 2006.

A fully fledged public consultation offered
an opportunity for Member States and stakeholders to express their views in
June 2011.

There was a general consensus on the need
for updating the legislation related to flag State and port State in order to enforce
the MLC requirements.

The specific positive effects which were
underlined were reinforcing maritime safety, improving quality shipping, making
the conditions of competition fairer between EU and non EU operators and
between EU and non EU flags.

Stakeholders also mentioned the better job
quality for all seafarers, namely EU seafarers working on board EU flagged
vessels, EU seafarers working on board non EU flagged ships, even beyond the
EU, for non EU seafarers working on board non EU flagged ships.

The Task Force on Maritime Employment and
Competitiveness, an independent body set up by Vice-President Siim Kallas in
July 2010, which finalised its work in June 2011 and issued a Report[7]
containing policy recommendations on how to promote the seafaring profession in
Europe, has recommended the enforcement of the MLC.

3.           LEGAL ELEMENTS OF
THE PROPOSAL

3.1         The content of the
Proposal

3.1.1      Responsibilities of the
Flag State

The national flag constitutes the primary source of State
responsibility for a ship. Flag States are required to ensure that their ships
comply with the standards accepted by flag States under international law and conventions,
in particular with international minimum standards. This means that a flag State’s
ships are to be operated and maintained in a manner that minimizes the risk to
seafarers, the marine environment, and the cargo. Article 94 of the 1982 United
Nations Convention on the Law of the Sea (UNCLOS 1982), establishes flag States’
fundamental duties and Article 94(5) requires flag States to take any steps
necessary to secure observance with generally accepted international
regulations, procedures and practice.

The
flag State exercises effective jurisdiction and control over administrative,
technical and social matters on their ships and crew on
the high seas. It enforces regulations over vessels registered
under its flag, including those relating to inspection, certification, and
issuance of safety and pollution prevention
documents.

In
concrete terms, before allowing a ship to fly their flag, Member States shall
check that the ship complies with international rules and regulations in the
domains falling within its responsibilities.

The current proposal on flag State is limited to taking up some
parts of Title V of the MLC related to the flag State's responsibilities. As
mentioned, Directive 2009/21/EC on flag State is complemented but not amended
by the present proposal. The proposal provides for the enforcement
and compliance of the flag State with Directive 2009/13/EC.

However, the MLC provisions setting up the duty for the ships to
bear a maritime labour certificate and a declaration of maritime labour
compliance and certifying that all the 14 MLC matters (minimum age of
seafarers, medical certification of seafarers, qualifications of seafarers,
seafarers’ employment agreements, use of any licensed or certified or regulated
private recruitment and placement service for seafarers, hours of work or rest,
manning levels for the ship, accommodation, on-board recreational facilities,
food and catering, health and safety and accident prevention, on-board medical
care, on-board complaint procedures, payment of wages) could not be all
transposed into EU law for reason of EU competence and political opportunity.

Thus, Directive 2009/13 does not encompass the full range of matters
covered by the MLC. As a consequence, the obligations of the EU flag States are
limited to enforce the provisions of Directive 2009/13/EC.

3.1.2      Detailed content of the
proposal

Directive
2009/21/EC seeks to ensure that the flag of all EU Member States have good
standing (not being blacklisted...) and to incorporate the International Maritime
Organisation (IMO)'s flag State audit scheme into EU law and to introduce the
quality certification of the national maritime authorities while the present
proposal has different purposes. The present proposal does not refer to any IMO
procedures but lays down principles to monitor the application of Directive
2009/13/EC taking up some of the Maritime Labour Convention standards. For the
sake of clarity, it is preferable to have a separate text.

Article 1
describes the subject matter of the proposal consisting in ensuring that the EU flag States meet their responsibilities in
applying and enforcing Directive 2009/13/EC.

Article 2
refers to the definition of ship and shipowner based on the MLC definition and
used in Directive 2009/13 to avoid any discrepancy between the standards and
the implementation measures.

Article 3 lays
down the obligation for flag State to establish mechanisms for inspection and
to ensure the compliance of its ships with Directive 2009/13/EC.

Article 4
refers to professional qualifications and independence of the staffs in charge
of verifying that the matters covered by Directive 2009/13/EC are rightly
applied on board vessels flying the flags of the Member States concerned.

Article 5 deals with the complaints on board EU flagged ships and lays down the
principles and procedure to be followed by the flag States competent staff.

3.1.3      Explanatory documents
accompanying the notification of transposition measures

Further to the Joint
Political Declarations (OJ 2011/C 369/02; OJ 2011/C 369/03)[8],
the Commission is now considering the need for explanatory documents on a case
by case basis. By virtue of proportionality, explanatory documents have not been
deemed justified in the present proposal, which does not modify any other
existing legislative act, to avoid possible additional administrative burden
and since the proposal is well delimited and does not affect heavily regulated domains at national level. Thus,
the present proposal does not include the recital on explanatory documents..

3.2         Legal basis

Article 100(2)
of the Treaty on the Functioning of the European Union

3.3         Subsidiarity principle

Harmonised
rules on enforcement across the EU should contribute to establishing a level
playing field in order to both avoid distortions of competition in the internal
market at the expense of maritime safety and to ensure decent working and
living conditions for all seafarers regardless of their nationality. In
particular the experience of port State control at EU level has proved
efficient to ensure better surveillance of ships calling at EU ports by pooling
resources and exchanging information.

3.4         Proportionality principle

Measures by
flag State is the prime means of enforcement in the shipping industry. The
current proposal aims at strenghening the role of the flag State in monitoring
the effective application of Directive 2009/13/EC in a consistent way, avoid
the Member States to act individually at the expense of consistency and
possibly in breach of either international or Union law.

3.5         Choice of instruments

In a context of
minimum standards to be implemented by Member States by measures in their own
national systems and in the field of shared competences, the appropriate
instrument is a directive.

3.6         Entry into force

This Directive
shall enter into force on the date of entry into force of the Maritime Labour
Convention, 2006, similar to Directive 2009/13.

2012/0065 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

concerning flag State responsibilities for
the enforcement of Council Directive 2009/13/EC implementing the Agreement
concluded by the European Community Shipowners’ Associations (ECSA) and the
European Transport Workers’ Federation (ETF) on the Maritime Labour Convention,
2006, and amending Directive 1999/63/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[9],

Having regard to the opinion of the
Committee of the Regions[10],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Union action in the field
of maritime transport aims, inter alia, at improving shipboard living and
working conditions of seafarers, safety at sea and the prevention of pollution
caused by maritime accidents.

(2)       The Union is aware of the
fact that most accidents at sea are directly caused by human factors,
especially fatigue.

(3)       One of the main objectives
of the maritime safety policy of the Union is to eradicate substandard
shipping.

(4)       On 23 February 2006, the
International Labour Organisation adopted the Maritime Labour Convention, 2006
(the Convention), desiring to create a single, coherent instrument embodying as
far as possible all up-to-date standards of existing international maritime
labour conventions and recommendations, as well as the fundamental principles
to be found in other international labour conventions.

(5)       Council Decision 2007/431/EC
of 7 June 2007[11] has authorised the
Member States to ratify the Convention. Member States are urged to ratify it as
soon as possible

(6)       The Convention sets out
maritime labour standards for all seafarers regardless of their nationality and
of the flag of the ships.

(7)       Council Directive 2009/13/EC
of 16 February 2009[12] implements the Agreement
concluded by the European Community Shipowners' Associations (ECSA) and the
European Transport Workers' Federation (ETF) on the Maritime Labour Convention,
2006 and amending Directive 1999/63/EC (the Agreement).

(8)       Directive 2009/13/EC was
adopted on the basis of Article 155 of the Treaty.

(9)       Since agreements concluded
by virtue of Article 155 of the Treaty to be implemented by Council decisions can
only cover matters defined by Article 153 of the Treaty, certain provisions of
the Convention relating to flag State responsibilities for the enforcement of
the Convention could not be part of the social agreement implemented by
Directive 2009/13/EC. Those provisions should be integrated into Union law by
virtue of this Directive.

(10)     Although Directive
2009/21/EC governs the flag State responsibilities by incorporating the IMO's
flag State audit scheme into Union law and by introducing the certification of
quality of national maritime authorities; a separate directive covering the
maritime labour standards is deemed more appropriate and clearer to reflect the
different purposes and procedures,

(11)     Directive 2009/13/EC
applies to seafarers on board ships flying the flag of a Member State. Member
States should therefore monitor compliance with all the provisions of that
Directive by ships flying their flag.

(12)     For the control of the
effective enforcement of Directive 2009/13/EC, it is necessary that Member
States verify through regular inspections, monitoring and other control
measures, that ships that fly their flag comply with the requirements of
Directive 2009/13/EC.

(13)     Since the objectives of
this Directive cannot be sufficiently achieved by the Member States and can
therefore, by reason of the scale or effects of the action, be better achieved
at Union level, the Union may adopt measures, in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty. In accordance with the
principle of proportionality, as set out in that Article, this Directive does
not go beyond what is necessary in order to achieve those objectives.

(14)     Since this Directive enforces
Directive 2009/13/EC, this Directive should enter into force on the same date
as Directive 2009/13/EC,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject
matter

This Directive lays down rules to ensure
that Member States effectively discharge their obligations as flag States to monitor
compliance of ships flying their flag with Directive 2009/13/EC. This Directive
is without prejudice to Directive 2009/21/EC of the European Parliament and of
the Council[13].

Article 2

Definitions

For the purpose of this Directive, the
following definitions shall apply:

a) "ship" means a ship other than
one which navigates exclusively in inland waters or waters within, or closely
adjacent to, sheltered waters or areas where port regulations apply;

b) "shipowner" means the owner of
the ship or another organisation or person, such as the manager, agent or
bareboat charterer, who has assumed the responsibility for the operation of the
ship from the owner and who, on assuming such responsibility, has agreed to
take over the duties and responsibilities imposed on shipowners in accordance
with the Annex to Directive 2009/13/EC, regardless of whether any other
organisation or persons fulfil certain of the duties or responsibilities on
behalf of the shipowner.

Article 3

Compliance monitoring

Member States shall ensure that appropriate
checks and monitoring mechanisms are established and that effective and
adequate inspections are carried out to ensure that the working and living
conditions of seafarers on ships flying their flag meet, and continue to meet,
the requirements of Directive 2009/13/EC.

Article 4

Staff in charge of compliance monitoring

Member States shall ensure that staff in
charge of verifying the proper implementation of Directive 2009/13/EC has the
training, competence, terms of reference, powers, status and independence
necessary or desirable so as to enable them to carry out that verification and
ensure compliance with that Directive.

Article 5

Complaints

1.           If a Member State receives
a complaint which it does not consider manifestly unfounded or obtains evidence
that a ship that flies its flag does not conform to the requirements of Directive
2009/13/EC or that there are serious deficiencies in its implementing measures,
that Member State shall take the steps necessary to investigate the matter and
ensure that action is taken to remedy any deficiencies found.

2.           Staff in charge of dealing
with complaints shall treat as confidential the source of any grievance or
complaint alleging a danger or deficiency in relation to seafarers' working and
living conditions or a violation of laws and regulations and give no intimation
to the shipowner, the shipowner's representative or the operator of the ship
that an inspection was made as a consequence of such a grievance or complaint.

Article 6

Transposition

1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with this Directive not later than 12 months after its entry into force.
They shall forthwith communicate to the Commission the text of those provisions.

2.           When Member States adopt those
provisions, they shall contain a reference to this Directive or shall be
accompanied by such reference on the occasion of their official publication.
The methods of making such reference shall be laid down by Member States.

3.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.

Article 7

Entry into force

This Directive shall enter into force on
the date of entry into force of Directive 2009/13/EC.

Article 8

Addressees

This Directive is addressed to the Member
States.

Done at Brussels,

For the European Parliament                       For
the Council

The
President                                                 The President

[1]               OJ L 161,
22.06.2007, p.63

[2]           OJ L 124, 20.05.2009, p.30

[3]               COM(2009) 8

[4]               See paragraph 3 of the Communication.

[5]           COM (2011) 144 final

[6]               OJ L131, 28.05.2009,
p.132

[7]               Published on 20 July 2011: http://ec.europa.eu/transport/maritime/seafarers/doc/2011-06-09-tfmec.pdf

[8]               COM ((2007) 502)

[9]               OJ C [...], [...], p. [...].

[10]             OJ C [...], [...], p. [...].

[11]             OJ L 161, 22.6.2007,
p. 63

[12]             OJ L 124, 20.5.2009, p. 30.

[13]             OJ L131, 28.5.2009, p. 132.